Case Law: Freedom of Speech

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Case LawFreedom of Speech
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I. In General

• No Literalist or Absolutist Interpretation

- Some restrictions by govt are permitted

• Taking Cognizance of the Effect of Speech

- Courts and laws concern about actions

• Political Context of Speech, Speech Laws

- Peace and general prosperity
- War, crisis, and nationalism
Examples from American history
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II. Speech Cases

• In Each, Notice

- Particular criminal law (conviction)
- Particular speech (and particular action)

• Schenk v. U.S. (1919)

• Abrams v. U.S. (1919)

• Gitlow v. New York (1925)

• Dennis v. U.S. (1925)

• Brandenburg v. Ohio (1969)

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III. Speech Tests

• Connect Each to Particular Cases

• Clear and Present Danger

• Bad Tendency

• How Court Associates Speech with Action

- How closely will one bring about the other?

• Ongoing Balancing by the Court

- Police power (legitimate ends) of govt
- Speech and communication of opinion
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IV. Expression Cases Intro

• What Is Relation of Expression to Speech

- How did the framers understand speech?

• Compare Symbolic Speech Cases with
• Previous Speech Cases

- Similar conduct at issue?
- Similar analysis by the Court?

• Acknowledged Categories for Restriction

- see pp. 245-246
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